Reconstructing the boundary between business loss and state financial loss in state-owned enterprise management

Law Number 1 of 2025 and Law Number 16 of 2025 reshape the relationship between state-owned enterprise (SOE) losses and state finances. Article 4B treats gains or losses as those of the SOE, while Article 9F codifies a conditional business judgment rule (BJR). Yet the criminal-law boundary remains unsettled where a business decision causes loss. This normative legal study uses statutory, conceptual, and case approaches to develop a six-parameter fiduciary loss attribution test: informed process, loyalty, legality of authority, good faith and corporate purpose, mitigation, and loss qualification. It examines Constitutional Court Decisions Nos. 48/PUU-XI/2013 and 62/PUU-XI/2013, Decision No. 28/PUU-XXIV/2026, and cases concerning Karen Agustiawan’s BMG investment, the LNG Corpus Christi transaction, Hotasi Nababan, and the 2025 ASDP acquisition. The central doctrinal argument is that Article 36(2) of the Criminal Code permits punishment for negligence only where legislation expressly provides for it, whereas Articles 603 and 604 do not formulate negligence as a punishable mode; Article 604 also requires an intention to obtain an unlawful benefit. Accordingly, a serious procedural failure alone cannot replace proof of the statutory mens rea. The test is proposed as an interpretation of unlawfulness and culpability, not as an additional element of an offence. It differentiates ordinary procedural defects, acts beyond authority, and abuse of authority for an improper purpose, while preserving civil and administrative accountability where criminal elements are not established.